Friday, July 29, 2016

Title VII’s reach to protect employees is co-extensive with breadth of employers’ retaliation

A recent case out of California demonstrates that Title
VII’s anti-retaliation protections of employees are just as broad as some
employers’ destructive sweep to get rid of “problem” employees. In Equal Employment Opportunity Commission v.
Zoria Farms, Inc.,the court
on July 22, 2016, ordered Z Foods, Inc., (the successor corporation to Zoria
Farms) to pay $1,470,000 in compensatory and punitive damages to several female
employees who had been sexually harassed by two supervisors, and to male and
female employees who were terminated after they either complained about the
harassment or were merely related to the persons who had complained.

Title
VII makes it “an unlawful employer practice for an employer…to discriminate
against any individual with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” “‘Discriminatory conduct includes
harassment,’” Zoria Farms (quoting Meritor Savings Bank v. Vinson),
when that harassment occurs because of sex.” Id. (citing Oncale v. Sundowner Offshore Servs.). An employer violates Title VII when
it subjects an employee to harassment that constitutes a hostile work
environment. A hostile work environment based on sex exists when there is
unwelcome conduct that is based on the plaintiff’s sex, which is sufficiently
severe or pervasive to alter the plaintiff’s conditions of employment and to
create an abusive work environment, and which is imputable to the employer. Boyer-Liberto v. Fontainebleau Corp. In measuring the severity of the
harassing conduct, “the status of the harasser may be a significant
factor–e.g., ‘a supervisor’s [harassment] impacts the work environment far more
severely than use by co-equals.’” Id. “‘…[A]
supervisor’s power and authority invests his or her harassing conduct with a
particular threatening character.’” Id. (quoting
Burlington Indus., Inc. v. Ellerth).

In Zoria Farms, the
court granted the EEOC’s unopposed motion for default judgment and found that
the EEOC had set forth prima facie
claims of sexual harassment. Over a two-year period, Rosa Mendez’s supervisor
Martin Ramirez made inappropriate comments to her, such as how good she looked
in pants, he dreamed about having sex with her, she had a beautiful body, he
desired her breasts, he liked the way her breasts moved when she walked, he was
imagining her naked, and he thought about what it would be like to have sex
with her. Ramirez also inappropriately touched Mendez: he would walk by and
brush up against her or stand next to her while rubbing up against her; he
would come up from behind her and grab her buttocks or fondle her breasts. He
also often propositioned Mendez, telling her that if she had sex with him, he
would offer her a better employment position. Ramirez also sent Mendez to remote
areas of the work facility so that he could further harass her. This terrified
Mendez, as she had heard rumors that he had raped other female employees in
similar, isolated areas. In these isolated areas, he grabbed her from behind
with both hands. Mendez complained about Ramirez’s behavior to Martha Sanchez,
the Human Resources Manager, and to Jill Brooks, the Plant Manager. Mendez told
them that she refused to go to isolated areas because she knew Ramirez was
going to try to sexually assault her. Rather than defend or protect Mendez,
Sanchez and Brooks told her that she was being insubordinate for refusing to
obey Ramirez’ orders, and subsequently wrote her up for being insubordinate.
Mendez was not the only female employee whom Ramirez sexually harassed.

That Ramirez’s harassment altered the conditions of Mendez’s
employment was unquestionably clear to the court: His conduct caused her to
experience feelings of anxiety and stress, which led to her having difficulties
sleeping and recurring nightmares. After her complaints to Human Resources and
the Plant Manager went unanswered, her feelings of depression, sadness,
anxiety, stress, and humiliation continued. She had to force herself to go to
work. Her feelings of depression became so intense that she attempted suicide
in October 2007.

Supervisor Francisco Guerra sexually harassed Rocio Guevara
and other female employees. Guerra placed harassing telephone calls to Guevara,
solicited her to go on dates with him, made numerous comments about her body,
told her he was in love with her, offered to promote her if she went out with
him, and leered at her. With regard to the other female employees, Guerra
identified which of them were good at oral sex, discussed sexual positions,
propositioned female employees with offers of promotion in exchange for sex,
threatened their continued employment unless they acquiesced to his advances,
leered at their buttocks, subjected them to unwanted touching, and enlisted
other female employees to solicit female employees on his behalf.

The court found the two supervisors’ harassing actions were
imputable to the employer because it utterly failed to take appropriate
remedial action to stop the harassment after numerous employees complained of
the harassment. An employer is “strictly liable for the supervisor’s harassing
behavior if it ‘culminates in a tangible employment action,’ but otherwise may
escape liability if two conditions are met: (1) the employer exercised
reasonable care to prevent and correct any harassing behavior, and (2) the
plaintiff unreasonably failed to take advantage of the preventive or correction
opportunities the employer offered. Boyer-Liberto.

Not only did Mendez and Rocia Guevara complain about the
sexual harassment, but numerous other male and female employees complained as
well. In April 2008, Mendez and several of her co-workers participated in a
meeting to talk to management (Human Resources Manager Sanchez and Plant
Manager Brooks) about Ramirez’s conduct. Ramirez was thereafter terminated. Sanchez
and Brooks assured the employees that they should not worry about losing their
jobs.

In order to establish a prima facie case of retaliation
under Title VII, a plaintiff must demonstrate that: “(1) she engaged in a
protected activity under Title VII; (2) defendants were aware of the activity;
(3) plaintiff was subject to an adverse employment action; and (4) there was a
causal nexus between plaintiff’s protected activity and the adverse employment
action.” Burt v. Maple Knoll Communities, Inc.An “adverse employment action
‘constitutes a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.’” Id. (quoting Burlington
Indus., Inc.). The causal connection
can be established when the employer treated the plaintiff differently than
similarly-situated employees, or when the adverse action was taken shortly
after the plaintiff’s exercise of protected rights. Id.

In June 2008, Mendez and all
of her co-workers who participated in the April 2008 meeting were terminated.
Another employee, Maria Coronado, complained to Human Resources about Ramirez
sexually harassing her and other female employees. On one occasion in 2007, she
saw Ramirez trying to grab and kiss Mendez against her will. Upon seeing
Coronado, Ramirez released Mendez, but he thereafter began criticizing
Coronado’s work. Coronado was terminated after she participated in the April
2008 meeting with management to discuss Ramirez’s conduct.

Mireya Torres, another Zoria Farms employee, witnessed
Ramirez harassing Mendez. She was upset about Ramirez’ conduct towards Mendez
and attempted to limit the time Mendez had to spend alone with him. She
attended the April 2008 meeting with management to discuss Ramirez’ conduct. A
few weeks later, she was terminated.

Bacilia Barajas also worked at Zoria Farms and witnessed
Ramirez harassing Mendez. He encouraged Mendez to complain to Sanchez about Ramirez’s
harassing conduct, which Mendez did. Nothing was done about Mendez’ situation,
though. Barajas also saw Ramirez harassing other female employees. When Ramirez
became aware that Barajas had witnessed his behavior, Ramirez became more
aggressive toward Barajas and assigned him more strenuous work. Barajas
attended the April 2008 meeting and was shortly thereafter terminated.

The court found that the EEOC had sufficiently pled the
retaliation claims, as employees had reported Ramirez’ and Guerra’s conduct to
Human Resources and the Plant Manager. See
Brooks v. City of San Mateo(reporting sexual harassment to
supervisor constitutes protected activity), and were shortly thereafter
terminated.

What is most interesting about this case is the extent to
which Z Foods went to eradicate not only the complaining employees, but also
employees who were related to the
complaining employees. Title VII allows for third-party retaliation claims for
plaintiffs who are within the “zone of interests” sought to be protected by
Title VII. See Thompson v. North Am. Stainless, L.P. Title VII’s “zone of interests”
includes employees, as the purpose of Title VII is to protect employees from
their employers’ unlawful actions. Id. In
Thompson, the Supreme Court held that
a third-party retaliation claim under Title VII was properly made by an
employee who was terminated after his fiancée filed a claim of discrimination
with the EEOC against the same employer. The Court reasoned that “Title VII’s
antiretaliation provision prohibits any employer action that ‘well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v.
White). The Court in Thompson stated,
“[w]e think it obvious that a reasonable worker might be dissuaded from
engaging in protected activity if she knew that her fiancée would be fired.” Id. The Court declined to identify a
fixed-class of relationships for which third-party reprisals are unlawful
because “‘the significance of any given act of retaliation will often depend
upon the particular circumstances.’” Id. (quoting
Burlington).

In October 2008, Arnulfo Guevara reported Guerra’s sexual
harassment of his sister Rocia Guevara to John Zoria, a manager with Z Foods.
Zoria told Guevara to tell the women to find a way to submit a complaint
against Guerra. Zoria then called Guevara back, asked him how long the
harassment had been going on, then told Guevara not to say anything. In
November 2008, Guevara was fired.

Carlos Garcia is Arnulfo Guevara’s brother-in-law, and also
worked at Zoria Farms. In May 2009, the Assistant Plant Manager began asking
Garcia questions about Guevara, and asked him whether he knew that Guevara had
filed a charge of discrimination with the EEOC. In August 2009, Garcia was
terminated. The court found that Garcia’s termination as a result of his
association with Arnulfo Guevara was sufficiently pled to establish a
third-party retaliation claim under Title VII and Thompson.

In awarding not only compensatory but also punitive damages
against Z Foods, the court considered that it “did not have or did not enforce
an anti-discrimination policy, failed to take action in response to numerous
complaints, and permitted and ratified multiple violations of Title VII
prohibitions on harassment and retaliation.” Z Foods. The court concluded that, “[a]s these intentional acts
deprived these claimants of their civil rights, a punitive damages award of
$200,000 per individual – or $1,800,000 total – is appropriate.” Because the
predecessor employer, Zoria Farms, had already settled for $330,000, the court
held Z Foods as the successor employer jointly liable for the balance of
$1,470,000.

This case should send an unequivocal message to employers
who insist on eradicating not only problematic complaining employees–but also
their relatives– that such conduct is prohibited under Title VII and will
result in significant damages awards against them.